US. Department of Jus. <
Office of Legal Counsel
Office of the Deputy Assistant Attomey General Washington, D.C. 20530
November 15, 2001
MEMORANDUM FOR JOHN BELLINGER, IL
SENIOR ASSOCIATE COUNSEL TO THE PRESIDENT
AND LEGAL ADVISER TO THE NATIONAL SECURITY COUNCIL
FROM: John C. Yoo
Deputy Assist Ati
Robert J. Delahunty oe a
Special Counsel
: Authority of the President to Suspend Certait ion aM Treat
This is to provide you with our views on the question whether the President has the
constitutional authority to suspend certain articles of the Treaty Between the United States of
America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
Systems, May 26, 1972, US-U.SSR., 23 US.T. 3435 (the “ABM Treaty”) insofar as is
necessary to allow the development and testing of missile defenses. You have asked us to
consider two cases: first, suspension of the relevant articles by mutual consent of both the
United States and the Russian Federstion; second, unilateral suspension by the United States.
We conclude that the President has the constitutional authority to suspend the articles in either
case.
We begin by setting out in Part I the relevant features of the ABM Treaty. In Part II, we
review the President's constitutional authorities over treaties. In Part I, we address the
President's specific powers of treaty termination and treaty suspension. Part IV illustrates these
powers by reference to the practiée of the United States. Part IV(A) addresses termination, and
Part IV(B) suspension Part V demonstrates that, whereas “amending” an Article I] treaty
requires Senate advice and consent, the partial suspension of a treaty docs not.
I The ABM Treaty
The ABM Treaty, which entered into force on October 3, 1972, originated as\a bilateral
treaty between the United States and the former Soviet Union. In general, the ABM Treaty set
limits on the number and location of anti-bellistic missile systems of the former Soviet Union
and the United States and prevented the deployment of defenses against long-range strategic
ballistic missiles. Each side was originally permitted to have two deployment areas (later, byprotocol, reduced to one'), so restricted and located that the areas could not provide a nationwide
ABM defense, or become the basis for one. Of the two deployment arcas originally permitted to
‘each side, one was for a limited ABM system to protect that Nation’s capital, and one was to
protect an intercontinental ballistic missile system launch area. Quantitative and qualitative
limits were set on the ABM systems that could be deployed, and the Parties further agreed to
limit qualitative improvements of their ABM technology.
In Article V, both Parties agreed to prohibit the development, testing, or deployment of sea-
‘based, air-based, space-based or mobile land-based ABM systems and their components,
Certain provisions of the ABM Treaty concerned the breach, amendment,or abrogation of the
Treaty. Article X provided that “[eJach Party undertakes not fo assume any international
obligations which would conflict with this Treaty” Article XTV(1) authorizes each Party to
propose amendments to the Treaty, which if agreed upon “shall enter into force in accordance
with the procedures governing the entry into force of this Treaty.” Article XV(1) provides that
the Treaty “shall be of unlimited duration.” Article XV(2) grants each Party “the right to
withdraw from this Treaty if it decides that extraordinary events related to the subject matter of
this Treaty have jeopardized its supreme interests.”
‘The dissolution of the former Soviet Union during the autumn and winter of 1991 required
the United States to re-evaluate its bilateral treaties with the Soviet Union, including the ABM
‘Treaty. On the whole, the United States operated on the general principle that the treaty rights
and obligetions of the former Soviet Union had passed to “successor” States, unless the terms or
the object and purpose of a treaty required a different result. See Memorandum for John M.
Quinn, Counsel to the President, from Walter Dellinger, Assistant Attomey General, Office of
Legal Counsel, Re: Section 233(a) of S. 1745, at 1-2 (June 26, 1996) (“1996 Dellinger Memo");
see also Edwin D. Williamson and John E. Osborn, 4 U.S. Perspective on Treaty Succession
and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia, 33 Va. J. Int’1 L.
261, 264-65 (1993). Nevertheless, in the area of arms control treaties it was decided to treat
succession issues on a case-by-case basis.
On September 26, 1997, the United States entered into a Memorandum of Understanding
Relating to the Treaty Between the United States of America and the Union of Soviet Socialist
‘Republics on the Anti-Ballistic Missile Systems of May 26, 1972, September 26, 1997, available
at httpuAwww State,gov/www/alobal/arms/factsheets/missdef/abm mouhtm] (the “MOU”).
Four “successor” States were parties with the United States to the MOU: Belarus, Kazakhstan,
the Russian Federation and Ukraine.” The MOU was intended to reflect the fundamental
changes in the political situation caused by the dissolution of the Soviet Union and to preserve
the viability of the ABM Treaty. Article I of the MOU provided that, “upon entry into force of
this Memorandum,” the United States together with the four other signatory States “shall
constitute the Parties to the [ABM] Treaty.” The four successor States assumed the rights and
obligations of the former Soviet Union, subject to certain modifications. Only a single ABM
* See Protocol to the Treaty between the United States of America and the Union of Soviet Socialist Republics on
{he Limitation of the Ani-Bellstic Missile Systems, uly 3, 1976, Art 1, 27 UST. 1625, 1686, TLAS. 8276.
* Each of these four States possessed ABM Treaty-related assets on its teritory, and each had demonsiated a desire
to become a Party to the ABM Treaty.deployment area was permitted for all of the four successor States combined, and only 15 ABM
launchers collectively at ABM test ranges were permitted. Article IX(1) provided that “[tJhis
Memorandum shall be subject to ratification or approval by the signatory States, in accordance
with the constitutional procedures of those States.” Id,
During the last Administration, our Office took the position that the United States could enter
info MOU without Senate advice and consent as a velid exercise of the President's constitutional
authorities to recognize States and to implement and interpret treaties. See 1996 Dellinger
Memo. While not conceding the constitutional point, President Clinton promised that “[tJhe
MOU .... will be provided to the Senate for its advice and consent.” Letter to Hon. Benjamin A.
Gilman, Chairman, Comm. on Intemational Relations, United States House of Representatives,
from President William Jefferson Clinton (Nov. 21, 1997), reprinted in 144 Cong. Rec. H7276
(1998). The Clinton Administration did not submit the MOU to the Senate, and it remains
unsubmitted. We are informed that the United States has not deposited its instrument of
ratification of the MOU. We are also informed that all four successor States have ratified the
MOU. The Russian Federation's ratification was conditional, however, on the United States’
ratification of the START protocols. We understand that this condition has not been met, and
that it appears unlikely that it will be met. Consequently, both because the United States has not
deposited its instrument of ratification, and because the Russian Federation’s ratification was
contingent on an as-yet unmet condition, the MOU by its own terms has not yet entered into
force.
Ul. The President's Constitutional Authority Over Treaties
Presidential authority over treaties stems from the President's leading textual and structural
position in foreign affairs generally, from the text and structure of Article II’s vesting of all of
the federal executive power in the President, and from the specific manner in which the
Constitution allocates the treaty power. Construing the Constitution in this manner comports
with the President's Article II responsibilitics to conduct the forcign affairs of the nation, to act,
as its sole representative in intemational relations, and to exercise the powers of Chief Executive.
Historical practice also plays an important role in resolving separation of powers questions
relating to foreign affairs. Judicial decisions in the area are rare, while the need for discretion
and speed of action favor deference to the arrangements of the political branches. The historical
evidence supports the claim that the President has broad constitutional powers with respect to
treatics, including the powers to terminate and suspend them. In light of considerations of all
‘three kinds -- textual, structural and historical -- we conclude that the President has the
constitutional authority to suspend a provision of the ABM Treaty.
> Whether the ABM Treaty remains in effect and, i's, who are the Parties to it are questions thet continue to be
disputed. The dissolution of the Soviet Union in December, 1991, arguably altered the fundamental conditions on
‘which the ABM Treaty was predicated, and it may be argued with considerable force tht the teaty did not survive
that change. Ifthe ABM Treaty were thought not to have survive, then the MOU would be without effec, because
the MOU was designed to extend and multiateralize the treaty. Even on the view that the ABM Treaty did survive,
the fact that the MOU has not entered into force appears to indicate thatthe treaty is at this point a bilateral treaty
‘between the United States andthe Russian Federation, rather than a multilateral treaty involving the four successor
States and the United States.